I was watching the debate between two of Colorado’s candidates for Senate last week and the case of Bullock v. United States Bureau of Land Management, No. 4: 20-cv-00062-BMM (D. Mont. Sept. 25, 2020) came up as one of the questions. In that case the person acting as the Head of the Bureau of Land Management, an agency within the Department of Interior, was removed by a US District Judge in Montana for violation of the Appointments Clause of the US Constitution — namely acting as an officer of the United States without the consent of the Senate. Moreover, all of his functions and duties during the time of his improper tenure were declared invalid.
It brought to mind the Arthrex and Polaris cases and their pending petitions for writs of certiorari at the US Supreme Court.
The judge in Bullock v. United States Bureau of Land Management, No. 4: 20-cv-00062-BMM (D. Mont. Sept. 25, 2020) concluded his decision by stating:
The APA requires courts to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A). A court cannot “substitute its judgment for that of the agency.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). A court instead must ensure that the agency has “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983). The Secretary’s failure to perform the functions and duties of BLM Director as required under the FVRA and instead delegate those decisions to an improperly appointed Acting BLM Director would render any decisions issued by that Acting BLM Director arbitrary and capricious as not issued “in accordance with law.” 5 U.S.C. § 706(2)(A). See also SW General, Inc. v. N.L.R.B., 796 F.3d 67, 79 (D.C. Cir. 2015), aff’d on other grounds,___ U.S. at ____, 137 S. Ct. at 938 n.2 (“The Board did not seek certiorari on this issue, so we do not consider it.”).
The Court recognizes that any “function or duty” of the BLM Director that has been performed by Pendley would have no force and effect and must be set aside as arbitrary and capricious. See 5 U.S.C. §§ 3348(d), 706(2)(A). These acts appear to include, but not be limited to, the Missoula RMP and the Lewistown RMP. The Court will direct the parties to provide further briefing on these actions and any other BLM Director exclusive functions or duties that Pendley may have performed.
You can read the entire opinion here:
STEVE BULLOCK, in his official capacity as Governor of Montana; MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, Plaintiffs,
v.
UNITED STATES BUREAU OF LAND MANAGEMENT, an agency within the United States Department of the Interior; WILLIAM PERRY PENDLEY, in his official capacity as the person exercising authority of the Director of the Bureau of Land Management; UNITED STATES DEPARTMENT OF THE INTERIOR; DAVID BERNHARDT, in his official capacity as Secretary of the United States Department of the Interior, Defendants.
No. 4:20-cv-00062-BMM.
United States District Court, D. Montana, Great Falls Division.September 25, 2020.
ORDER
BRIAN MORRIS, Chief District Judge.
INTRODUCTION
The Governor of Montana and the Montana Department of Natural Resources and Conservation (“Plaintiffs”) bring this action against the U.S. Bureau of Land Management (“BLM”), William Perry Pendley in his official capacity, and various government agencies and agents in their official capacities (together, “Federal Defendants”). Plaintiffs allege that Pendley unlawfully served as Acting BLM Director in violation of the Appointments Clause of the U.S. Constitution, the Federal Vacancies Reform Act of 1998 (“FVRA”), and the Administrative Procedure Act (“APA”). (Doc. 1).
Plaintiffs seek declaratory and injunctive relief. (Doc. 1 at 29). Specifically, Plaintiffs seek an order and judgment declaring Pendley’s service as Acting Director of BLM unlawful; enjoining Pendley from exercising the authority of the Director; enjoining Department of the Interior (“Interior”) Secretary David Bernhardt from directing Pendley to exercise the authority of the Director; and granting any other relief deemed appropriate. Id. Plaintiffs filed what they fashioned as an Expedited Motion for Summary Judgment on August 20, 2020. (Doc. 10). Federal Defendants argue that Plaintiffs lack standing to bring their claims. (Doc. 17 at 1-2). Federal Defendants argue, in the alternative, that Pendley exercises the authority of BLM Director through lawful delegation. Id. at 2-3.
BACKGROUND
Factual Background
BLM manages the use and maintenance of 245 million acres of federal public lands (around 12 percent of the nation’s landmass) and 700 million acres of subsurface acreage (around 30 percent of the nation’s minerals). The Federal Land Management and Policy Act (“FLPMA”) charges BLM with administering those lands and subsurface acres. FLPMA requires that “the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values.” 43 U.S.C. § 1701(a)(8). Congress established the office of Director to lead BLM. By statute, the Director of the BLM must be filled “by the President, by and with the advice and consent of the Senate.” Id. § 1731(a).
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